Notorious Copyright Cases - Men At Work "Down Under" (Larrikin Music Vs EMI Songs Australia)
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- Опубліковано 5 тра 2022
- Notorious Copyright Cases - Men At Work "Down Under" (Larrikin Music Vs EMI Songs Australia)
In 2008 80's Australian rock band, Men at Work, was sued for copyright infringement when their hit from nearly 30 years previous was alleged to have copied parts of a song written 45 years before theirs.
It was one of the biggest music copyright cases in Australian music history and it all started from a question on a quiz show.
0:26 Intro
1:07 Origins of Men at Work and "Down Under"
1:51 The first recording (Audio)
2:02 Getting signed and the first hit single and album
4:52 Spicks and Specks guests try to identify the song
5:24 Origins of "Kookaburra"
8:00 "Kookaburra" in Doctor Who
8:16 Larrikin's new owners decide to start legal action
13:04 Australian copyright law overview
13:33 Audio comparison of the 2 songs (With Isolated instruments)
14:16 "Causal connection"?
14:55 The musicologist's opinion
16:15 Colin Hay's evidence
17:41 Justice Peter Jacobson's ruling
19:33 The Appeal
22:41 Head of Larrikin, Norm Lurie's statement
23:22 Public opinion in Australia
24:04 Greg Ham
25:31 "Down Under" is back on the charts!
26:04 Outro - Розваги
![Men At Work • “Who Can It Be Now/Overkill/Down Under” • LIVE 1983 [Reelin' In The Years Archive]](http://i.ytimg.com/vi/HaMEzljVtA4/mqdefault.jpg)
This legal case still HAUNTS me, and I was relieved to see you correctly reported that I had SOLD my music publishing company, Larrikin Music (although I retained the record label of the same name until selling it to Festival Records in 1993) a decade BEFORE the new owners of Larrikin Music, Music Sales International, commenced their appalling, misguided legal action. I repeatedly called for the case to be dropped and that the children's song be gifted to the nation. Such is life. Warren Fahey.
Thank you so much for commenting Warren. I'm glad I got the details correct, that means a lot to me. Would love to talk to you more about your experiences in the Austalian music industry!
Onya for commenting Warren. Sad days when us Aussies started comparing ourselves to the USA during these trials (sue each other for anything we can). Unfortunately, from corporate greed, we not only lost an Aussie rock legend (Greg), it also tarnished what many considered one of our National Anthems, & the guys who played it.
Copywrite lasts way too long. At most it should be 50 years after the creator's death. The only difference is if it was collective company property. No answers for that situation from me.
Thx for sharing!
@@Lana_Warwick I agree. It’s a huge pity when one of the best bands of Australia get tarnished over a flute riff.
I feel so bad for Greg because this whole nasty lawsuit basically destroyed him in his last days which he in no way deserved. RIP Greg Hamm
This is also why patent trolls are so hated.
the scumbag that started the lawsuit against him should be shamed
The behaviour of Larrikin is akin to patent squatting. They didn’t create Kookaburra, essentially they bought it at a deceased estate auction, and from a woman whose motivation was never about money.
It’s Men at Work’s “Down Under” I hold with great affection.
Kookaburra will forever leave a bitter taste in my mouth.
It doesn't sound nearly close to the same to me.
LIARkin Publishing
As an American, I'm nowhere near familiar with Kookaburra but I am aware of signature songs. As I stated earlier, copyright laws in any country can be a steep area. For me as with many fans, it's Down Under that's iconic no small part due to Greg Ham's musical creativity. He didn't need to be subjected to all the suffering he felt forced to endure.
@@timepoet77 yeah they shouldnt have lifted someone elses work, seems like the answer is simple, its almost like folks cant admit that this band is responsible for their own actions, they borrowed a riff that was someone elses and instead of making the correct inquiries just thought they could get away with it. and it cost them. and rightly so.
I heard when lawyers are sitting on the can, instead of reading a magazine; they dream up ways of making people miserable and suing people for stupid shit.
The world will be a much better place when Jesus Christ returns and outlaws these halfwits 😁
Great work.. Lawyers got 4.5million and the creator got 10pound. That's the real crime
Don't forget, this was for a copyright that they paid only around $6,000 for in the first place, and they did absolutely nothing to it to add value.
You should hear about the cost of insulin in the US.
I believe that those that knew the flute part was Kookaburra thought, like I, that Kookaburra was NOT copyrighted, that it was in the public domain.
They killed a man (basically) for a little bit of money on a piece of music the owners didn't write. Sickening.
I heard Down Under in Los Angeles 8 months before it hit big. I knew immediately it was going to be a monster hit. In the U.S., we were taught Kookaburra in elementary school music class in the 1960s so I was totally familiar with it. I would never have associated Down Under with Kookaburra.
Well, for someone who never heard Kookaburra, i can't find the similarity, even after listening it couple of times. I think someone would find this "similar" if they know the folk songs, even then it need to be pointed out.
I think the lawsuit is reaching.
This is unlike Led Zeppelin "Whole Lotta Love" Vs "You Need Love" for example, which average people would instantly recognize the similarity on first listen because they are nearly identical.
Looking at the original note transcription, the beat is similar to the "sits in the old gum" (tree is the rest in Down Under). The note progression is only apparent in "the old gum". The similarities are more apparent in a few variations made by common people as the style of popular music changed. This was called "substantial"? Only when the brain inserts notes into the rests (put in to give it the reggae sound) does it more closely resemble Kookaburra, which is kinda a luck genius, making the listener active in filling in the gaps. The activity makes the song even closer to the listener as the listener actively shares a common nostalgia. However, the notes trailing after "sits in the old gum" progress differently. Also, the tempo and key are different, but that is not considered.
you mustve been living under a rock.
@@timn4481 Under Rock & Roll, yeah baby! 🤣
(Similarities to Austin Powers is for satirical emphasis only. No funds were received from this post. All rights to "Yeah Baby" lie with Mike Myers and New Line Cinema.)
I'll always remember Greg Ham for his amazing sax solo on Who Can It Be Now.
Colin Hay kills it in acoustic live shows to this day! 2023. The guy is a gem!
l knew it was the Kookaburra song in 81 / 82 but didn't think anything of it other than it was Australiana cleverly used in a song about Australia. l'm sure it didn't go un noticed by many Aussies . That song is part of every Aussies DNA
Everyone did, that the guests on the quiz show didn't is unbelievable.
I recall singing Kookaburra here in Canada when it was below minus 40 degrees & recognized it in Down Under. Business as Usual was one of the first albums I bought. I think the whole English-speaking world knew both songs
Yep same here.
It probably didn't seem like anything unusual; I remember noticing that the opening horn riff of George Harrison's "Awaiting on You All" was more or less the tune by which kids sing the English alphabet. I really hope that tune is in the public domain by now.
@@pcno2832 wouldnt be the first time harrison lifted something
Copyright is sooo over-extended compared to its intended purpose. It was intended to stop sheet music publishers reprinting other publisher's material thereby causing a loss of sales - copying whole pieces of music or at least substantial sections. Now it's got to the stage where fragments of riffs taken waaay out of context are protected even though the new work causes absolutely no harm or loss to the owner of the earlier work.
I know right 🤷♂️
The application of copyright is completely out of line with the original intention.
It shouldn't be a way to call dibs on certain arrangement of notes. It was supposed to protect the creators ability to monetize their work. A song sounding similar doesn't devalue either song 🤦♂️the interpolation of the riff should be considered fair use as it doesn't devalue the original, its not like u hear Down Under and then think oh now I never need to listen to or sing kookaburra ever again 🤷♂️🤦♂️
Such is the case with nearly all laws. Lawyers see them as business opportunities. And most legislatures are stuffed full of lawyers....
men at work commited this infringment when the writer was stil alive, no change in the rules in any way was going to save them for having to answer for their theiving ways. sorry.
@@Traxploitation this infrigment happened while the author of the original work was still alive. men at work were DOA from the get go no change in copyright law would have protected them from the bad faith actions they took
@@horrortackleharry it is a business opputurnity and has been for centuries. thats how publishing works, if you dont like that artists can protect that work i dont know what to tell you.
Saddening. Rest in peace Greg Ham.
Great band and great song from the 80's.
We should not let the greed of Larrikin completely tarnish Down Under & Men At Work.
And we won't either.
I've had the song in my head since I watched this video. I'm tempted to buy it, but Greg won't get a penny and Larrakin will take 5%.
The fact that the overwhelming majority only notice the similarity when being dipped right into it with the nose just goes to show that upon being used in such a creative manner something new has been created.
In my opinion, the six-notes-lick played before the two individual Kookaburra lines are pure genius, very recognizable, and now that I'm aware of the fact, I will view them as the musical version of the phrase: "As someone once put it...".
Nicely put, couldn't agree more!
For someone who are not familiar or know Kookaburra at all, i can't find the similarity, even after listening it couple of times. I think someone would find this "similar" if they know the folk songs, even then it need to be pointed out.
This is really seems kinda reaching...
the only issue is that that just isnt true. everyone knew it was a play on the kookaburra song. from kids to adults, from day 1 when it was released.
This sickens me so much, greed plagued so many good things an destroyed so many good people... RIP Greg Ham
I can't believe what was a musical nod, ended up spiraling Greg Ham into depression and death. Can you imagine if this went down in the jazz world? How many people would get sued for playing 2 bars of a Coltrane riff? I never knew about this story until now. Greg didn't deserve what happened to him. Damn the owners of Larikin Music Music Sales International.
Both the house Greg Ham had to sell and the house he died in are a couple of hundred metres from my home in the suburb of North Carlton in Melbourne. There are quite a few high profile people living in the terrace houses of our suburb, but I remember Ham as one of the quieter people, although if I gave him a respectful nod when I saw him in the street, he always returned it.
concordo com vc. Me parte o coraçao até hoje saber o que Greg passou injustamente.
que bacana! que honra vc teve em conhecer e ser vizinho de Greg@@Dave_Sisson
My guess - if we'd ever heard from Greg Ham in the court case - is that he'd say the song was so ubiquitous that he assumed it was much older than it was, a traditional folk tune, and thus probably public domain.
The Lady who actually wrote the original song, who sounds like a great person, must of heard the song because it was so massive and would be more difficult not to of hear it play. Yet, she never raised any objection. Disgusting work by the parasites of the 'music' industry yet again.
Well, Marion Sinclair died in 1988 (six years after the song was a massive hit) at the age of 92. It's quite possible that she didn't retain her full mental faculties by that time and may well have never heard "Down Under".
Still, I agree with you that the case was an appalling money grab and Ms. Sinclair would surely not have approved.
Must HAVE...HAVE....not OF.
@@jeffclark5268 must’ve …. It’s very obvious they were writing the pronounced conjugation of must have…..
If you are going to correct people, be correct.😊
like harper lee, who refused ot publish any more books, but after her death her lawyer published a book she never intended to see the light of day
@@paultorbert6929 - "pronounced conjugation"...? Were you trying to say "contracted form"? Oh, the irony.
Copyright law seems more designed to help the corporation than an artist. 70 years after death seems a silly amount of time its like its designed to make sure your music is forgotten.
I recognised the Kookaburra riff from the very first time I heard it all those years ago. However, I always thought it was very clever the way it was incorporated and that Kookaburra was an old song in the public domain.
What a messy outcome.
I hope Larrikin Music never recovered their reputation after this. Such a tragic turn of events.
She wrote this tune out of love of Australia as did men at work😁🇭🇲 Music is Art why drag such a classic into the mud😁🇭🇲
That’s a good point Nathan. It’s hard to imagine two tunes so connected to the Aussie identity. What a mess the greedy made of it all.
The real crime is that Greg Ham added what we all KNOW Is the real hook of Down Under and yet didn't receive a writing credit from the band. That's ridiculous.
It's telling that the piece Quantas used is mostly the flute part...🤔 indicating that's the section that evoke the Down Under Song...
So yeah and absolute travesty he wasn't listed as a writer yet got dragged into the court case 🤷♂️
The most ironic point about this case is that it gave the track a whole new launch.. the case gave the song more publicity than ever before.
As an Aussie, I am so super proud of Men at Work.. awesome track that will live forever.. every Aussie loves this track..❤
"It came to her while she was in church". How ironic if they were singing a hymn and she heard something in that music which triggered her idea.
Ha! That's a good point. I wonder what it was...be hilarious if there was a hymn with that riff in 🤦♂️
The only thing that came to me in church was atheism. I am a believer.
Reminds me of the Led Zeppelin case. The riff in question in that case turns out to have previously been a note/chord progression in a composition from a composer in the 1600's. No doubt you could probably dig back and find the same Kookaburra melody buried in an earlier composition. With only 12 notes to rearrange into any song there's going to be some overlap somewhere.
An excellent video which, in my opinion, highlights a number of problems with the underlying copyright law:
1. "Life of the author + 70 years" is just TOO long a term, it places the interests of authors' heirs (or their assignees) above those of creative artists or anyone else wishing to reuse something that has become historic material. A fixed copyright term of "50 years from publication" would be much fairer (as well as being far simpler to operate in practice). If a work still has value after 50 years, that is because it has been incorporated into the common culture, at which point it should enter into the public domain and be free for anyone to use.
2. The "substantial part of a copyrighted work" test leads to anomalous results where, as here, the portion being used is not in itself substantial, but forms a substantial percentage of a very short work.
3. There also needs to be a "fair use" exception for short musical (and other) quotations which do not create a substitute for the original copyrighted material impacting its commercial value. (Such quotations could even add value by drawing attention to the original work.)
4. There needs to be a statute of limitations to block cases where the allegedly infringing work has been known about for many years.
5. The biggest winners in this case were the lawyers.
I find this whole story so frustrating on every level. Thanks for laying it out straight for us traxploitation!
I think its cute how a couple musicians are guilty of infringement, but the court went out of its way to absolve Quantas FOR THE EXACT SAME SONG.
I will always remember Greg Ham as an inspired, creative and versatile musician. He wrote "Helpless Automaton". Sad that he never knew how much he was appreciated by musicphiles such as myself.
Jazz musicians quote popular songs all the time in the midst of their solos - and to my knowledge never get pinned for copyright infringement. They're just playfully referring to part of a well-know song. I feel that this is the case in "Down Under".
i am American and 50 years old and i have never heard of the "Kookaburra" song, it would have been heartwarming to know the Women that wrote it had received a little more money for a song that apparently many children around the world had loved.
as far as Men At Work whom i love, it would feel like more as an homage than anything else and feels too small to me to warrant a copyright case. that said if ANYONE involved between that band and the record company knew at all that ANYTHING is being used in ANY context they should have certainly checked into it the copyright and received proper permission first. THAT said from it does NOT sound like Marion Sinclair was particularly concerned with making money from the song and i suspect she probably would not have wanted a whole bitter trial and court case over it. it always comes across badly when some company wants to start a lawsuit for seemingly greedy reasons. there are a few music legends out there whos names and reputations feels a little tarnished now by greedy family members constantly bringing cases against people for a cash grab.
i saw Men At Work once, back around 2000 give a take a year and they were a blast. both Colin and Greg were a ton of fun and personality. so dont worry Greg that is how I will remember you.
I'm 66 and we sang Kookaburra in primary school to learn singing in the round, complete with the ha ha ha! at the end of the song.
Wow, we sang "Kookaburra" in the classroom in elementary school. I had forgotten that the class had sung this song. I never would have put all of this together until this video!
What a great video. I'm not Australian, so never knew of "Kookaburra", but I wore out a copy of "Business as Usual" on 8-Track in the early 80s... I never knew any of this went down.
Copyright laws are a nightmare. It also seems to me that more often than protecting the actual artists, claims mostly feed label owners and lawyers.
Agreed, there should be the equivalent of anti-slapp legislation or provisions with copyright and/or IP law. IDK, maybe there exists such already, but if so it sure isn't being applied
And another point... The extension of copyright for longer and longer periods has absolutely nothing to do with looking out for the creator's descendants - it is entirely about publishers being able to milk the rights for as long as possible and any benefit to the descendents is entirely collateral damage (assuming the publisher actually pays the royalties without having to be audited and sued by said descendants).
Absolutely right! Ive worked with a lot of deceased estates and they almost never know how to collect the royalties or how to check its correct, so undoubtedly there's going to be loads of examples of publishers and labels taking advantage of that.
This is a very balanced, laudable take - but there is one element that lies at the heart of the case that is just as wrong here as it was in the opinion of three of the four judges involved: Whether something is a "substantial part" in a copyright dispute cannot just look at the purported original while _ignoring its length_ (tiny) and downplaying the part this element plays in the purported copy (which isn't all that much, and is also plainly a reference to Australian culture, so arguably a quote covered by fair use). Taken to an extreme, this elementary error of application would mean that a work consisting of only two or three notes would be "substantially copied" by pretty much everybody else.
Fun fact: The vocal melody in "What a Wonderful World" is based on "Twinkle Twinkle Little Star", another example of evoking a theme by referencing a traditional melody. "Twinkle Twinkle" is well in the public domain, so... there's that.
Thanks for watching and commenting.
Sort of.
Twinkle Twinkle, Ba Ba Black Sheep and The ABC song were all based on a 17th century melody that had been adapted by tons of composers including Mozart, Liszt, JCF Bach, Haydn and Saint-Saens. It was later adapted into a French Nursery Rhyme before eventually becoming Twinkle Twinkle, fairly recently.
So Wonderful World isn't based on Twinkle Twinkle per se, but they are both derived from the same melody, a melody that was common to numerous other pieces.
Gotye. Somebody that I used to know - Baa Baa black sheep 👌🏼
Bloody hell, so it is. Thanks for that Ned.
Wow- never even realised, literally wonderful- thanks! 😃
Mozart wrote Twinkle Twinkle. Maybe he should sue!
Today's "artists" "sample" other's work and get massive accolades for their "talent". This case was just nonsense.
This wasn't plagiarism it was tribute and appreciation.
you can steal something and say "hey i was just paying tribute" and will have the same luck emi had in court. its not a d efense
@@simonjames1604 the guys probably never realised anyone owned Kookaburra to be honest. I'd never heard of it before we moved to Australia as a small kid in '82. First day at school, the teacher was having us sing it in rounds, something else I'd never experienced until that point. Until this case I wouldn't have even considered it would have copyright, it never occurred to me that a nursery rhyme would still have copyright given that it's taught to children and becomes part of the national psyche.
Turns out that Carol of the Bells is copyrighted - but only for the lyrics which were added in the 1930s - so they're covered until 2048.
@@Warlock_UK yeah its a weird story , we moved to canada in the early 70s and my sister was in the girl guides and they sang the song all the time, and in the guides book it was properly attribituted to marion sinclair but as far as i know it wasnt even copyrighted until 1975.
If so, why not acknowledge Kookaburra on the album sleeve then? I agree on it being a tribute, but that doesn't mean you don't need to cite your sources like with any work. It would not have been difficult to acknowledge the excerpt from Kookaburra on the sleeve of the record.
@@simonjames1604 This one has gone whooshing right over your head Simon.
You can't steal a song that was gifted by the person who wrote it. Remember the composer didn't sell her songs, she gifted them to those who looked after her and who valued the things she cared about.
The value of this campfire song is not in how much money it made (ie none) it is in the memories of those who sang it during formative experiences growing up.
There's a reason Australia saw this for what it is. A piece of culture featuring in another piece of culture. No vandalism, No plagiarism.
The judge was obliged to apply the law. The damages were proportionately small. And the claimant who just happened to have this song in their possession benefited by using it to serve greed and opportunism, at the expense of cultural value.
You think you're defending Marion's estate. But her songs weren't written for the purpose of sale.
You're defending greed, and you're using misuse of copyright law to justify it. You are correct on paper, and a twat.
The only thing stolen here were good memories. That's why if you were to try and raise your ridiculous position with a true Aussie you'd get a slap round the ear.
So tragically ironic that a folk music publishing company were so intent on securing copyright monies in the way that they did. The whole idea of folk music is that it passes on ideas and melodies from one generation to another with variations and reinventions happening all the time, all to keep the line of culture going.
I was so glad to see that original Larrikin owner Warren Fahey was given full absolution here, and even happier to see him have his own say in the comments. I actually ended a friendship with someone because they refused to acknowledge that Warren's time at Larrikin had ended even before the acquisition of 'Kookaburra' (and this person was a self-proclaimed "folky" and Australian rock historian).
This was one of the most tragic and unnecessary chapters in Australian music history. R.I.P. Greg Ham.
My original copy of "live at red rocks" by U2 back in the early 80s contains a clip of "send in the clowns". All subsequent versions have it stripped out. To this day, I cannot hear "electric Co." without hearing Bono singing the words to send in the clowns in the middle of the song. I think all music is influenced by other music. Musicians are the true gems among us… If we allow record labels to destroy the musicians, we are only hurting ourselves.
Phil Collins sings a few lines of somewhere over the rainbow, on tomorrow never knows from the face value album
I think this is the problem with copyright being bought up by recording companies. I think the original author should retain rights until they pass. AT that point, it should become public domain. So much of music is based on what came before that trying to sue artists over it ultimately only works to destroy music.
I’m an ex-Aussie who emigrated to the UK in 2001 and had no idea this had gone on. For what it’s worth I always assumed that the flute riff was indeed Kookaburra with it being a nod to the Aussieness of Australian culture depicted Down Under. I’ve always thought that from my first time seeing the music video on Countdown (not that Countdown, the Aussie show hosted by Ian ”Molly” Meldrum (RIP)) in 1979 and then bugging my Dad to buy the album just so I could listen to it over and over - it was the Vegemite sandwich line that hooked me because that’s all I ate almost. I was addicted to them. Personally I think it was pretty pathetic of Larikin Music to seek restitution for something they didn’t realise or know about until long after Ms Sinclair’s death, who herself didn’t seek to claim copyright, and only did when it was highlighted on a quiz show. Had that quest not been asked on that tv show the court case wouldn’t have happened after all.
PS: To the creator- a great overview of the facts and a well produced video. 👍🏼👏🏼
Ian ''Molly'' Meldrum's not dead. His dignity is long dead and gone, but he's still (sort of) with us.
I'm more of a Marmite fan. Taste better. I love my Marmite (on toast) & Yorkshire Tea.
@@RSGill1903 You may be right. My sister and I ate an entire jar of vegemite with spoons. Not something I'd do again, but we did it and learned that excessive vegemite eating is disgusting. We learned it the hard way.
@@I_was_a_Countdown_Kid-75-83 I’m positive that I read that Meldrum died around four or five years ago. Or am I misremembering Richard Wilkins (Aussie MTV) passing? Either way I have definitely been going around with that nugget rattling around in my noggin.
@@MIK33EY Both are still with us. Molly fell from his ladder about 10 years ago. He got a shoulder and head injuries, a punctured lung, and other damages. He recently let his pants down in front of an audience at an Elton John concert in Melbourne, and he being 80 years old ... I'll leave the image to your imagination. I was a regular on Countdown, and was in the audience when Men At Work did ''Who Can It Be Now'' and ''Down Under'' on the show. It'll be a sad day when Molly goes, but he really should put his hat up. He is not a healthy man, and I don't think he has many years ahead.
I greatly appreciate your dedication to crafting these well-produced videos.
My pleasure!
Agreed!
Let the death of a beloved musician be on the heads of the scumbags at Larrikin. It was beyond necessary to to do this. I guess the Kraft people can also sue Colin and Ron for the usage of the word, and imagery of a "vegemite sandwich". Why not sue Quincy Jones for all of the Billie Jeans out there when he produced the record using their name for profit or gain. THAT is how unnecessary and ridiculous this was.
Absolutely, I think people have completely misunderstood the purpose of copyright. It's not to call dibbs on melodies or song ideas.
It was meant to give the creator ample time to profit before everyone else. The test for whether a song infringes copyright should simply be is the new song successful because of the similarities. IE did people go wow I love that Men At Work song because there's a short section that sounds like a song scouts and guides sing.
Obviously not case closed. 🙄
If sounding like a famous song was the only factor in success then every cover version would be a hit. 🤦♂️
I don’t understand why the copyright holder didn’t pick up the phone or meet the guys for a beer and come to a gentlemen’s agreement. Oh that’s right - greed.
@@coasterblocks3420the required element of a gentlemen's agreement is that both parties be gentlemen. Hear that Larrikin? (not Fahey o/c)
Larrikin under the leadership of Norm Lurie is the Australian version of Pharma Bro (aka Martin Shkreli). Didn't do any of the work developing the original product but went after profits when they landed the rights to it. It's not like Lurie did this on behalf of the estate of Sinclair or her nominated beneficiaries. If Lurie has any shred of decency in him, he'd donate the $100k to the Sinclair family or the animal welfare trust Marion bequeathed.
Outrageous that they thought 40 to 60 percent of royalties for 2 bars out of an entire song. Obviously they were quite delusional. I’ll be listening to Down Under is support of the band.
Excellent presentation. I live in the US and remember singing the Kookaburra song in grade school in the 70s. It was my first awareness of Australian culture. What a treasure. As a musician I believe that the use of the Kookaburra riff was likely intentional in Down Under but so what? It was cleverly done so as a nod to your culture, just not as obvious as a Vegemite sandwich. Sadly it wasn’t clever enough to evade the shameful lawsuit money grab attempt. Marion would have been shocked and appalled.
Can't help thinking of Pete Ham, the poor chap who was ripped off after writing Without You, and subsequently committed suicide in 1974. It's since been covered by 180 artists and his estate finally received half a million in royalties, but it's a tragic story like Greg Ham's. The music business is brutal.
I'll be doing a Badfinger video soon!
A couple of points where missed/overlooked in this otherwise sensational video.
Sometime after this case was concluded, a version of the song was re-released without the riff in question.
The Luude versions, with and without Colin Hayes' contribution, re-introduced the riff and, to me knowledge, has not met with similar legal action taken against it. Which I find interesting.
This old Yank used to sing Kookaburra in grade school in the early-mid 60's. So I'm quite familiar with the song. When Down Under was released, not once did I associate it with Kookaburra. To me, Down Under was a unique song.
i noticed that the song also has the same chord structure sequence as " Waltzing Matilda" so its a right old aussie mash up from end to end
So many songs have musical references to older songs within them. A musical nod is not a ripoff. I heard about the lawsuit in the US and thought it was awful and greedy on the part of the entity that brought the suit. As well as the death of the band member that followed.
Absolutely, I think some people forget what copyright was meant to achieve. It was to allow a creator ample time to earn from their creation before it enters the public domain. Which originally happened after just 20 years, this period kept getting extended and now composition copyright lasts for 70 years after the death of all the composers which means the total duration of copyright could be up to 170 years!!. Which is far longer than is needed. Really, the only real test in a copyright case should be whether the defendant profited directly from the similarities. IE was "Down Under" a hit because it had the Kookaburra melody interpolated? The answer is obviously "no". That should be the end of the case there. Like you say, references, homages, nods, whatever you want to call them are not just common, they are essential! There would be no genres, no movements, no nothing, if every song had to be completely unique and original.
@@Traxploitation I remember an interview with Brian May regarding creativity. He said that no one creates in a void.
Btw, the video you created was comprehensive and informative. I have always wondered about the details of this tragic event. Thank you
@@Traxploitation copyright is meant to prevent people "taking" that which is not theirs and claiming it is theirs. which is exactly the case, the riff is kookuberra so you have to pay up because its not your work. does that mean that the song couldnt have been done without the riff from another song? sure but thats NOT what happened , what happened is they did lift the riff and they got caught doing it, if you watch the video and see the flautist sitting in a gum tree it kinda makes their defense weaker.
@@simonjames1604 claiming ownership of a melody is like claiming a certain sentence structure. It's like saying, "he copied me. I used a subject, then an action, and then an object first." Bullship
@@simonjames1604do you believe the riff forms an essential part of "Down Under"?
I find it interesting that having just watched the whole video, I already can't remember the second half of the original song (all two bars of it). The idea that it was a "substantial part" of such a short song, while being such a small element of Down Under, and that Larrikin wanted half the royalties as a result (which they thankfully didn't get), is mad.
So weird. When the song came out in the 80s I was in elementary school on the other side of the planet in Canada. We kids literally recognized the melody lift immediately. We just assumed it was a Aussie nod to the nursery rhyme. Like public domain stuff.
I wonder how it would have played out if 'Men at Work' in recognition of the 'Kookaburra' had donated some of their Royalties at the time? The flute rift was the thing we whistled at school when the record was out. Great video and thank you for sharing.👍🏻
I had dealings with Warren I few years back. Such a nice bloke and to be dragged into this legal tragedy. It should never have happened and those responsible for the opportunist money grab will have to live with the consequences.
Norm Lurie should be ashamed that his greed led directly to the death of Greg Ham, when the tune should have been deemed "fair use" all along.
Whilst the "spicks and specks" brought the similarities to mainstream attention, I can recall being in primary school in the 1980s and nearly all the kids would sing the "kookaburra" words during the flute solo. We just assumed when we became adults that it was a nursery rhyme like "humpty dumpty" or "mary had a little lamb" and never thought someone would try to make royalties AFTER the death of the writer.
This song is almost akin to a national anthem. When overseas I sometimes hear it in on the radio or in shopping malls and it reminds me of the things I miss about our great country.
I honestly thought it was public domain. I would argue that it had,
at some point, become folk-music due to the fact it _was_ so familiar and that it gave instant 'Australian' vibes by its very nature.
Which is why we are all familiar with the riff, but unable to actually place it by name. It's more about Australianess than about the song itself, or who wrote it
Folk music isn't inherently public domain. 🤷♂️ just because something is considered folk music doesn't mean it loses its copyright protection.
Even centuries old works traditional works can have protections on certain new arrangements...and nothing ever goes public domain during a writers lifetime. The writer was still alive when Down Under was written, so no question of it being public domain. 🤷♂️
@@Traxploitationcould a fair use defense have been more effective or applicable?
This was a fantastic overview of what happened in this case. I knew the basics, so this was very interesting. I've been a fan of MAW for decades, and Greg Hamm was a clearly gifted musician with a great sense of humor and wit, and I also agree that this case sent him into a depression that ended his life. It's extremely sickening to hear that this scandal amounted to a meager $100,000 for Larrikin Music. I'm all with Fahey's comment about gifting Kookaburra to the people of Australia. Down Under played a massive role in spreading interest in Australian culture. It's as much an anthem of Australia as anything else.
I love Down Under, but being in Canada I never really heard of Kookaburra or this legal trial. This was super well researched, thorough, and interestingly presented! Love this video!
Thanks 😀 😊
girl scouts here sang it all the time and paid the royalties to the songwriter. even they knew better than men at work!
I was never a fan of Men at Work until in June of 2022 I went to a Ringo Starr concert, and one of the All-Star Band members was Colin Hay, founder of Men At Work. I was impressed. The man was possibly the most talented man on the stage, which included Ringo and Edgar Winter, among others.
To be fair, nearly anyone on stage with Ringo Starr has a good chance of being the most talented person on stage.
@@RFC-3514 Unfair. I am not particularly a fan of The Beatles but the consensus has always been that he is an excellent drummer.
@@eightiesmusic1984 - I don't think that was even the consensus among the Beatles.
@@RFC-3514 You are wrong and trying to be smart for reasons best known to yourself. Read a couple of articles by actual drummers to see whether they are critical of his drumming- you will not find that to be the case. Agree to disagree and move on.
@@eightiesmusic1984 - You're the one who decided to reply to a comment that wasn't even addressed at you, and seems to have problems both a) accepting that other people disagree and b) moving on. Maybe try following your own advice?
Every normal people noticed it instantly, yet it took 20 years for Music Industry Lawyers. That explains a lot.
No doubt, a child heard a song and a worm of notes got stuck in his ear. Years later, that worm reemerged, and having a good ear or a scout book, a young man puts that childhood memory into one of his first songs, unaware of future consequences. Eventually, a holding company picks up the rights and sues everything in sight that used that string of notes. It's kinda like what happened to a birthday song in the USA that none can legally reproduce without a media company coming down on them. It is corporate bullying in the purest sense. It is also something that is currently happening with the Dungeons and Dragons franchise.
Even if it was entirely intentional it's actually not the job of the performer who played the part to get it cleared legally. 🤷♂️ perhaps they were negligent at the time to not look into it...but that kind of thing with interpolations and "sampling" wasn't really a thing yet so in light of that they should have just come to a very simple agreement, no court case.
The atmosphere around the issue should not be such that it affects someone's mental health!
@@Traxploitation Hear! Hear! 👏👏👏
All very well, but is that not what the other Beatles worried about George Harrison? That his unintentional copying (well-meaning as it may be) would eventually get him into copyright trouble if they weren't there to point out the similarities to other songs, which it did when they weren't.
I had actually learned the Kookaburra song at school in the states. We had learned it as a round.
Same. Midwest USA in mid 1980s. I recognized the Down Under riff instantly even then as it is exactly the same.
This video REALLY confuses me because I recognised the Kookaburra riff the very first time I heard the song, and treated it as one of those "reverential references", like when Sugarloaf play riffs by the Beatles and Billy Preston, in "Dont Call Us We'll Call You". I simply cannot believe that anyone would sue over something so innocuous and obvious.
Another great video, explaining how things work so very clearly, not dumbed down at all but still making sense to the likes of me! Your videos are always such a class act!!
The guy from Larakin saying "We are a little company taking on a big company" making it out to be like this scrappy underdog doesn't wash. What it looks like is a small company seeing dollar signs and bringing a lawsuit to try and cash in big time and take home a massive, massive paycheck for something that was done as a homage and in part of a much larger work that was entirely original. The use of it in Down Under should have been fair use, but Larrakin was so blinded by greed they did not care. When the case did not go quite the way they hoped its suddenly "Waah, waah, this big company is picking on us and they should pay our legal bill!"
Should've been a negotiated (small) participation long before it hit the courtroom. Overaggressive plaintiffs lawyers or client, the addition of the willful part was just silly. The judge's final determination was fair and accurate. If all the legal costs and heartache didn't happen, a similar settlement would've been better for all.
It is so sad that these iconic songs are at the centre of this. I feel for the band members of Men at Work and what this would have done to them. And while I believe that writers should have copyright protection, I think in this case - protection was not main factor.
The members of Men at Work always had the choice to credit Sinclair with a song writing credit on "Down Under" on their song's release in the first place. 🙂 Why didn't they just do that? As it is, 5% seems fair, especially compared to Jock-A-Mo / Iko Iko where the original writer James Crawford only received 25% of royalties despite the overwhelming majority of the song being the same.
This is one of the most thorough channels on UA-cam...you MUST be a must lawyer...my new favourite channel
Thanks, no not a lawyer.
But I've made it my business to understand the laws of rhe music business. I've been in the music industry for over 30 years as an engineer, songwriter, producer and artist. I've made many mistakes along the way, many stemmed from not understanding the laws...I learned a lot of this the hard way!
Larrikin spent $2.5 million to get $50,000. They own a small piece of one song and have a lot of bad blood for the publishing company.
If I write a song which contains just four notes, anyone who ever repeats those four notes has stolen 100% of my song. Copyright law is ridiculous.
Just discovered your channel and becoming a fan quickly the more I watch. This video of "Down Under" was the over-the-top video that made me a subscriber. Thanks for sharing your work.
Thanks...and welcome.
Feel free to suggest topics artists etc you want to see covered...
I feel very sad about the lack of humanity in the eyes of the publisher who was exercising a money grab . Weather it was right or wrong (to what amounts to a sample in todays music?) it could of have been handled better . God bless Greg Ham for his awesome talent and did not deserve the guilt trip that took his life. A sad story where everyone loses . I swear money is the devils right hand
Whether. Whether it is raining or sunny is immaterial to this story.
So disgusting this case ever happened...and Larrikin Music should have left the whole thing well and truly alone.
24:14 You're so much more than that Greg...RIP ! 🙁
Yes, the case was profiteering. But that doesn't exclude Men at Work from their responsibility of attributing that Down Under contains an excerpt from Kookaburra on the albums sleeves in '79 and '81.
@@TassieLorenzo Were any of the band even aware if they were using an excerpt from Kookaburra or not? If so...did they even know it was copyright protected? Should they also have attributed Volkswagen on the album sleeves for referencing 'Kombi' and Kraft for 'Vegemite'...plus not to forget the man in Brussels.
As ridiculous as it may seem there is legal precedent for that. 🤷♂️
Beyonce sued an Indian movie company for mentioning her name which is a registered trademark, in a song in their movie, they eventually settled. Volkswagon could argue that thier trademark is used in a disparaging manner as its in relation to the use of illegal substances. They just chose not to. I guess they had better things to do 🤷♂️
The flute riff does sound a little like "Kookaburra"; but that's about it. Otherwise, the two are entirely diffent songs.
It doesn't sound "a little like" Kookaburra, it's virtually identical, as made very clear in the video with the direct comparison between the two.
Sure thing. But why didn't Men at Work just note the Kookaburra excerpt on the album sleeve and give Sinclair a song writing credit for that in the first place? There's nothing wrong with using a well-known riff with the proper attribution.
@@TassieLorenzo because if they didn’t know it sounded the same, how could they? It took people 27 years to notice, 27 years. You expect them to notice in a few weeks. Get out of here, and take your filthy copyright shilling with you.
Netflix should make a documentary about this case. It’s insane how this all ended up.
God I love this channel. I am literally spacing out the videos to make them last. Absolutely love everything you do here. You have SO much to offer us.
I grew up with the MAW song in New Zealand in the 80s and was always conscious of the musical quote from 'Kookaburra Sits in the Old Gum Tree'. Frankly I'm astounded that this was lost on so many people for literally decades.
The "musical quote" was not lost on anyone! I recognized it instantly at 5 years old when we had to sing the Kookaburra song at school (Midwest USA). It was in a compilation book of children's songs.
I always noticed the similarity at the time but I never considered it might be some kind of plagiarism at the time. I guess I thought it was some kind of humorous tribute. I think I was 13 then. I did hear about the case much later and was surprised I didn't recall it. I had no idea it came from Spicks and Specks and was relatively recent. Thanks for the full story!
I learned Kookaburra as a child in the Girl Scouts. A years later I became a Men At Work fan and noticed the similarity of the flute section to the song Kookaburra. This was back in 1983! Yet I find the copyright trial tragic. I wish it had never happened. RIP Greg Ham; you were my favorite member of the band. 😞
I always recognised The Thomas The Tank Engine tune then realised it is lifted from the instrumental bit in the middle of the extended or London Town version of With A Little Luck. Whether Ringo claimed he’d written the tune as an add on to his narration is unknown to me. 😁👍
As an American fan of the song, not knowing of any of this prior this little documentary and thus having just learned the nature and origination of that riff, I immediately came the same conclusion as the first judge in the first hearing. Like the rest of the song, it is just another element that I eventually came to understand about Australia culture. The song as a whole, to an American, or me at least, hits one as all Australian, but seems to take a lifetime to unfold. The flute riff only makes more sense to me now whereas before it was like “well that was an interesting choice that everyone seems to be behind.” It’s like I can say “I get it now,” but it’s more akin to Cat Steven’s ‘Cat’s Cradle’ or something like that. The use of that riff now only seems more apropos for the song regardless how much the melody does or does not carry the overall tune. This is a very weird and tragic tale. Again, I ultimately fall with the first judge’s decision but there’s a great deal of shoulda woulda coulda as to initially securing rights to use it which would have been dirt cheap, but it’s also understandable that they would have assumed it was already public domain. I don’t know, it just feels like they may as well say that all of Australia deserves all the proceeds from the song. Regardless, very sad…I wonder, too, if the game show question was planted? I hope I can still enjoy the song…maybe the lawyers could be sued for sucking some of the joy out of life.
Your use of the phrase "dirt cheap" reminds me of another Australian rock song, the title of which seems to accurately describe the lawsuit happy owners of the "Kookaburra" song - AC/DC's "Dirty Deeds Done Dirt Cheap." Those music publishers should have just left Men at Work alone.
Harry Chapin sings "Cat's in the Cradle" ...not Cat Stevens 😁
@@Beethoven5th Same difference 😁
@Bea Thoven THANK YOU! Gaaah, odd that people can't stop making the mistake of citing Cat Stevens as the author of Harry Chapin's music (especially while commenting on Copyright issues 😮).
I just wanted to say how much I thoroughly enjoyed this video and truly appreciate your hard work and careful attention to detail.
Sad when Copyright Law is used to steal income from artists. Half of the song is the lyrics, which were not used. Ridiculous judgement with fatal consequences.
Maggoty lawyers from Musical Sales International (MSI) ~ who bought Larrikin Music ~ went out of their way to acquire the copyright of 'Kookaburra' knowing full well that their motivation was to sue Men at Work for copyright infringement. Their original claim was for compensation dating all the way back to 1981 when the song 'Down Under' was first released, but sensibly the trial judge only back-dated MSI's claim for six years, not the additional 30 years since the song's first release. It was a sad indictment (but a predictable one) on the nature of money hungry maggoty lawyers.
My little opinion is that Hamm did use melodies from Kookaburra to give Down Under an Australian vibe whether knowingly or unwittingly. However, the subsequent legal debacle should never have happened. RIP GH, you deserved better.
100% agree!
@@Traxploitation thanks for the reply. Really loving the channel.
Great job on this video! Cool to see a comment by Warren Fahey too! I loved Men at Work back then, and last year, saw Colin Hay with Ringo's All-Stars, which rekindled my affection for Men at Work, and that great 1st album. I didn't know anything about this ridiculous lawsuit. Sad that it cost Colin and Gregg such anguish and finances. New subscriber here!
Thanks!
Yeah, was great that Warren took the time to watch and comment. He actually commented a while back when it didn't even have that many views...I was shocked, but stoked when I saw it. Also relieved I got the facts right lol 😆
@@Traxploitation i found it rather a weird sentiment. he got well paid for selling the publishing for kookubarra but objects to the new publisher trying to protect their purchase? if he had noticed the men at work lift back when it happened and when sinclair was still alive this could have all been avoided. i found his comments self serving to the extreme.
I always assumed that Kookaburra was included as a nod to Australia. We leaned the song in grade school in Massachusetts in the 1970s.
Copyright laws in any country can be a very tricky area to navigate. But in the end, everything boils down to one basic factor: monies in perpetuity that can fuel many a battle. That said, Greg Ham didn't need to suffer as greatly as he did.
Copyright Law should be overhauled.
Simply stated, any Copyright should investigate the intentions of the author for writing/composing any piece. All Copyright should stem from this. Although in this case, Copyright seemed to exist long after the author had passed away and her intention was not to make money. This fact alone should have made it public domain. A limit should then placed on any true Copyright beyond the death of the author to 20 years only.
Absolutely, I've worked with a number of families of deceased performers and only half have any interest, knowledge or inclination to get involved in the copyrights many would happily see them gifted to the world as public domain but don't know how to do it. 🤷♂️
Those that do should be grant an extension on the copyright but solely for the purposes of collecting residual income from direct usage of that property and can't be transferred to another entity.
There's some really basic common sense reforms that need to happen but those with most influence have the most to lose from change.
I noticed this when they debated how the money from streaming should be distributed in parliament, I got letters from each of the 3 main organisations representing parts of the music industry, publishers/writers, labels and performers...and each of them were arguing for different things and the labels were pushing for something diametrically opposed to what the publishers and performers interests were. 🤷♂️🤦♂️
I am a 66 year old Australian and I have never heard of Kookaburra in an Old Gum Tree before this video. I must have been Under a Rock with an Old Goanna.
I dispute the idea that "nobody" noticed the connection until it came up on the quiz show, because I'm Canadian, and a girl I knew in the late 90s mentioned this connection to me. She had learned the kookaburra song on the recorder in music class as a kid and her teacher mentioned that it was referenced in the MAW song. Maybe it wasn't universal knowledge, but it wasn't new news by any measure.
It sounds like to me that the Australian courts got it pretty right. The flute riff was clearly a copy of the Kookaburra song and a significant part of it. But the flute riff was a much smaller part of the song Down Under, and therefore, a much smaller part of the song's pop success. Larrikin was obviously just trying to get as much money out of it as they could, whether they deserved it or not.
But really, copyrights last way too long, and should probably end with the death of the creator, if not before.
Just one lesson to be learned: if the law is abused, change the law...
Qantas got off because they didn't use a significant amount of Down Under, but they used the entire part of it that was in question. How does that work.
Australian here. Grew up with "Kookaburra sits ..." and this MAW song, and even had it played it at my wedding ... until it was pointed out ... never ever realised what it was. At the time I just recall thinking oh here is that damn flute bit again ... get it over with will you.
Colin's solo work is outstanding. I'm happy to have bought or heard all of his publicly available songs.
he's simply a gifted song writer. he's also entertaining as hell just talking. there only been 2 other
artists who's solo work I've followed and enjoyed like Colin. John Fogerty and Tom Cochrane.
Looking For Jack is a superb album-I bought it in a bargain bin in Woolworths in Southport, Merseyside, UK, in 1988 and fell in love with it. One of the most complete albums I have ever listened to, not one weak track. I especially loved 'Can I Hold You?' and ' Looking For Jack'. I saw him play to a crowd of about 150 in London in 1995 and he was very professional despite the small room and a lot of people seemingly disinterested. Into My Life from Wayfaring Sons is also fantastic.